Drawbacks to Probate

Posted by South Florida Probate Attorneys on June 20, 2011 in Probate with Comments Off

Planning your estate to assure the protection of your loved ones in the event of your death is an incredibly important task. Avoiding the subject because the event may seem implausible at this very moment or scary to discuss can leave your family and friends with a tremendous amount of stress and financial hardship in Probate.

Probate is necessary when the decedent has left assets titled in his or her individual name. These assets may include houses, cars, bank accounts, and even life insurance policies or retirement funds. It is irresponsible to go continue through life without having planned your estate, considering that one can be customized specific to your needs at a low cost and in a timely fashion.

The ideal Estate plan allows one to maintain control of their property while living, but allows for your assets to be protected, and your loved ones taken care of, upon your death or disability. A proper Estate plan would allow your very specific intentions to be carried out. Therefore, should you die, your exact wishes would be enacted on, instead of your property being subject to statutory interpretation.

Anyone who says that “Probate is not as bad as it sounds” is probably an Estate attorney. The bottom line is if you have over $75,000 in assets, you should do everything to either avoid probate, or simplify the process, as there are certainly negatives to probate.

The first and most obvious is the cost, with the lawyers, Courts, and creditors being paid prior to the family or beneficiaries seeing a single penny. Another drawback to probate is how time consuming the process is, with the probate of a simple estate taking between 6 and 18 months, while a complex estate can take over 3 years. During the probate process, your family does not have the ability of managing the assets in your estate. So, unfortunately, while certain assets depreciate in value, your family’s hands are tied as they do not have the ability to sell off those particular assets.

A third drawback is the idea that your family’s probate process including all that is included in the estate becomes public knowledge with probate litigation. Wills are filed with the Court and are considered public records, meaning anyone with internet access can view your family’s Will. However, if a Trust is set up, it not only eliminates the Probate process, but it is private information that can only be viewed by the appointed Trustee.

Finally, a very important drawback that should be addressed in a properly planned estate is that beneficiaries are poorly protected in Probate once they inherit an estate. The good news is with adequate estate planning through a trust-based plan set up by a qualified Estate attorney, your loved ones will be protected from manipulation, litigation, and divorce. Without a trust-based plan, your assets that you intended for your family could possibly be stripped from them and end up in the hands of a person you have never met.